The Supreme Court appeared sympathetic on Jan. 10 to an Arizona man contesting his drug convictions because the state presented a substitute expert witness to testify against him at trial who never analyzed the confiscated drugs.
In Smith v. Arizona, Jason Smith entered not guilty pleas to five drug offenses in Yuma County, Arizona. The state sent the drug evidence to a state-run crime laboratory, but the expert witness who testified against him at trial was different from the expert who performed the tests on the drugs. He challenged the substitution of the witness but was still convicted.
Mr. Smith argued that this switching of expert witnesses violated his Sixth Amendment constitutional right to confront his accuser.
Mr. Smith was present at his father’s residence when police showed up and searched the premises. Officers discovered what they believed were methamphetamine, marijuana, cannabis wax, and assorted drug paraphernalia in a shed on the property.
The forensic analyst who tested the evidence, Elizabeth Rast, left her job before the trial. The state presented another analyst at trial, Greg Longoni, who testified about crime lab standards and protocols and read from Ms. Rast’s notes about the analysis. Mr. Longoni did not perform any tests on the material seized by police.
At the oral argument on Jan. 10, the justices seemed to agree that Mr. Longoni’s testimony violated Mr. Smith’s Sixth Amendment rights but had differing views about how to rule in the case. The justices spent much of the hearing discussing the notes that Ms. Rast made.
Mr. Smith’s attorney, Hari Santhanam, told the justices that when Mr. Longoni testified, he “was actually reciting verbatim the same statements that Rast made in her report to set forth her conclusions.”
But a lower court held that the testimony was permissible by “applying the legal fiction that an expert may state the basis for his underlying conclusions and opinions under Rule 703 without offering that basis for the truth,” the lawyer said.
That legal fiction, as a plurality of the Supreme Court previously recognized, “is unrealistic.”
“It’s unrealistic to expect that a jury such as [in] Smith would understand that fiction. And, in this case, for the jury to have understood what Longoni’s opinions were and to have evaluated those opinions, it necessarily had to have considered the truth of those underlying statements that were offered to support them,” Mr. Santhanam said.
“The State here made a strategic choice to make Rast a witness against Smith, and in doing so … it elicited Rast’s statements … through Longoni, and when it did so, it was required to present Rast for cross-examination. Its failure to do so violated Smith’s confrontation right.”
Justice Sonia Sotomayor was sympathetic.
“Once you just give someone else’s testimony, and it is the only basis for your opinion, then it’s really you being a conduit.
“It’s the policeman getting up at the Star Chamber and reading your notes and saying: ‘This guy is guilty because of that. Put this guy away because he did all these things.’”
In English history, the monarch-directed Court of Star Chamber, abolished in 1641, was infamous for its arbitrariness and imposition of cruel punishments.
Mr. Santhanam said the justice was “correct.”
“To carry … your hypothetical … forward, we can imagine a scenario where a police officer goes to a crime scene and records notes of his or her observations at the crime scene, even generates an affidavit summarizing what he or she had observed,” he said.
Under Supreme Court precedent, “it would be a violation of the confrontation right if the report were introduced without confrontation. It would be a confrontation violation if the notes are introduced without confrontation.”
Justice Elena Kagan said the admissibility of the notes “must depend on the facts as to whether the notes are sufficiently closely tied to the report to fall within the same umbrella or not.”
“I mean, there are some notes that wouldn’t and some notes that would.”
Justice Brett Kavanaugh suggested the court should adopt the test that Justice Clarence Thomas “has been advocating in his opinions” since Williams v. Illinois (2012).
In the ruling, Justice Thomas upheld a conviction, finding statements in the case were offered for their truth and that the Confrontation Clause excluded only formal statements used in testimony.
If the court were to use that test, “Why don’t you lose here?” the justice asked Mr. Santhanam.
Speaking for the Biden administration, U.S. Deputy Solicitor General Eric Feigin told the justices: “We agree with [Mr. Smith] that Longoni’s testimony here may have gone too far.”
Arizona’s principal deputy solicitor general, Alexander W. Samuels, said the Supreme Court “has long been clear” that “evidence that is not offered for the truth of the matter asserted does not implicate the Confrontation Clause.
“Arizona law has long been clear that evidence offered only for the purpose of explaining the basis of an expert’s opinion is not and cannot be offered for the truth of the matter asserted.
“In a case like this, everyone agrees that a testifying expert like Longoni cannot serve as a mere conduit for the conclusions of a testing expert like Rast.
“That’s just not what happened here, though. Longoni explicitly testified that he could form independent conclusions and then testified that he had formed independent conclusions and revealed what those conclusions were. He based those conclusions on information in Rast’s notes and the computer-generated graphs from her testing.
“The trial judge who heard that testimony thus correctly found that Longoni had testified to his own opinion and correctly held that there was no Confrontation Clause violation,” Mr. Samuels said.
Justice Neil Gorsuch pushed back.
“I get that there are many ways to skin the evidentiary cat, but this case just seems to fall on the wrong line of it,” he said.
Your argument asks us to do “a heavy lift.”
After the hearing, Mr. Samuels told reporters he thought the hearing “went pretty well.”
“Obviously, it’s a tough case for the state when the United States is conceding that … something went wrong. But ultimately, obviously, we disagree.”
“A core question in this case is whether … the testing analyst was a witness against—which is the language of the Confrontation Clause—a witness against the defendant.”
“And I think there’s probably a core disagreement within the justices on the court. But I think … there’s a lot going on in this case, a lot of moving pieces, but that’s really the core question,” Mr. Samuels said.
The Epoch Times reached out to Mr. Santhanam for comment after the hearing but had not received a reply as of press time.
In Thornell v. Jones, the state is appealing a ruling by the U.S. Court of Appeals for the 9th Circuit that a death row inmate is entitled to a new sentencing hearing.
Danny Lee Jones claims he received ineffective assistance from counsel during the sentencing process. Mr. Jones was convicted of two counts of murder and one count of attempted murder.
He argues that his lawyer failed to secure a mental health expert and conduct appropriate medical tests in a timely manner during the sentencing process.
Specifically, the Supreme Court will look at whether the circuit court erred when it disregarded the district court’s findings as to the evidence presented during the sentencing hearing.
The case is expected to be heard in the spring.
The Supreme Court is expected to rule on Smith v. Arizona by June.
